13 August

Kalloo v. Kalloo

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in Family - Property Maintenance

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

(Family Court Division)

No: FH 00853 of 2006

KAREN KALLOO

Applicant

AND

ZAINOOL KALLOO

Respondent

Before: The Honourable Madam Justice A. Ramkerrysingh

Date: Tuesday, 10^th July, 2007

Appearances: Ms. Janice Clarence-Quamina for the Petitioner;

Ms. Joan Byrne for the Respondent

JUDGMENT

Introduction

Facts

This case involves a 32 year marriage, the parties (to whom I shall refer as “the Husband” and “the Wife” although the decree nisi was granted in 2006) were married in 1974. The Husband is now 59 years old and on pre-retirement leave. He will turn 60 in October of this year. The Wife is 52 and is expected to retire in 2015. Two boys were born of the marriage, Dale and Danel, who are now well on their way to a comfortable and secure economic future. Dale, 32 is a doctor, and Darnel is 25 has a degree in Computer Science and Information Technology and is now completing a certificate in a College in Florida. Both parties worked during the marriage and it is accepted that the Husband’s salary far surpassed that of the Wife. The Husband worked with Trinidad and Tobago Electric Company Limited (T&TEC) for about 44 years, beginning presumably at entry level and working his way up over the years to his retiring position of Control Operator. The Wife on the other hand, held various secretarial positions in both the private and public sectors. She has been working in her present job as a Clerk with the Ministry of Health but has been working as a clerk in the public sector since 1975.

The parties lived a comfortable life. Their children attended private primary schools, and went on to university at the end of secondary school. The family went away on vacation occasionally, they purchased a home (Braemer Road) in a respectable neighbourhood on the outskirts of Port of Spain. The parties in essence pooled their resources together. The Wife showed great initiative and acumen, investing early on, in the children’s future education, by purchasing six insurance policies especially for this purpose. She also took loans, and participated in several home saving/investment schemes (“sou-sous”), the proceeds which she used to fund holiday trips for the family, buy personal items for herself and the children and furnish and decorate the home. When she was short on money she turned to two trusted friends Dr. Henry Bedaysie and Ms. Pamela Greaves who, undisputedly, willingly rendered financial aid, particularly in relation to the children. The Husband who, seemed not as financially anxious as the Wife, gave her money as was needed. According to him “…whenever she needed money I gave her…”. From all accounts he did not seem to be an active participant in the family plans, which I imagine he felt more comfortable leaving to the Wife, but he did not hesitate to contribute to the family’s well being. He paid the deposit and the mortgage on Beaemer Road, gave money for the purchase of foodstuff, paid the children’s private school fees, contributed to their secondary and tertiary education costs and generally assisted with all other needs. According to him, he was in the habit, of leaving money on the dining room table for disbursement by the Wife.

Over the years the Husband was able to accumulate sum funds in the bank and quite lately, invest in two Credit Unions, but the latter investments were short-lived as he was forced to gather funds to pay for his heart surgery in October 2006. I am uncertain as to whether the short term credit union investments were deliberate in order to raise quick and ready cash for the imminent heart surgery, or whether it was an untimely coincidence that the monies had to be dispensed in this way. In any event, all funds in the credit union accounts were depleted by the time of the trial. Whatever the case, I have no doubt that there was no malicious intent to dispose of finances.

By the time the marriage began to break down the children had already left the home in pursuit of their tertiary scholastic goals. The parties were hardly on speaking terms but still occupied Braemer Road. In October 2006 the Husband underwent major heart surgery. The relationship was so unhappy that he did not tell the Wife about the surgery and during his convalescence, the Husband was forced to wash himself and change his bandages without assistance from the Wife. The Wife filed for divorce in May 2006 basing her petition on the Husband’s Behaviour. Seven months later in December 2006 she filed a Form 8 Application seeking a lump sum and transfer of the Respondent’s share in Braemer Road, which she asked the court to divide between them in proportions of one-third : two-thirds in her favour. The husband did not contest the divorce nor was he opposed to division of the interest in Braemer, but suggested that the ratio be calculated on a fifty-fifty basis. He also wanted the property to be sold and proceeds divided equally.

The trial of the financial relief application came at a time when the Husband is on the verge of retirement, and is expected to receive a gratuity pay-out and the Wife is not due to retire for another eight years.

Issues

Before outlining the issues I must mention that at the beginning of the trial both parties agreed that the sole issue that fell to be decided was: Based on the respective contributions of the parties during the marriage, how was the only asset, the former matrimonial home, to be divided between them? As the trial unfolded however, other questions came to bear on my mind which expanded the main issue into several segments so that I felt that many other questions had to be answered before I could decide who got what.

The result of those probing questions led to what I think are a more complete version of the issues, that is to say: (1) whether the former matrimonial home was the only asset to be considered for division, or should the assets also include the parties’ gratuities and pension receipts each expected to receive on retirement; (2) whether the respective contributions of the parties to the marriage were such as to entitle them to a 50-50 share in the assets as suggested by the Husband, or a one- third : two-thirds division in favour of the Wife.

Conclusion in Summary

I have determined that the Parties are entitled to half the share in all the assets comprising (1) the matrimonial home situate at 10 Braemer Road St. Anns, (2) the Husband’s gratuity of $347,886.00 and (3) the Wife’s gratuity of. The details of the manner in which the division is to be made is described below.^[1]

Documents and Chronology

Documents – The Wife

The Wife filed her petition for divorce on 11 May, 2006, based on the fact of the Husband’s intolerable behaviour. The decree nisi was pronounced on 28 June, 2006 and directions were given for the matrimonial home to be valued. On 17 October, 2006 further directions were given for the filing of the parties’ Forms 8 and 9 and Supporting and Responding Affidavits. Pursuant to those later directions, the Wife filed her Form 8 Application on 4, December, 2006, in which she detailed her income, assets and expenditure and claimed (i) transfer of the Husband’s share in the matrimonial home to her and; (ii) a lump sum payment. This was supported by her Affidavit also filed on 4, December, 2006 to which she exhibited several documents to support her claim. The Wife also filed an Affidavit in reply to the Husband’s Affidavit (see below) on 1 March 2007.

Documents – The Husband

The Husband’s Form 9 and Responding Affidavit were filed on 8, February, 2007. He also exhibited a number of documents in support of his response. Paragraph 17 of the Husband’s affidavit summarized his thoughts on the matrimonial home: He suggested that it be sold and the proceeds divided equally between the parties.

Chronology

Two Directions Hearings, the first on 17 October, 2006 and the second on 19 January, 2007 resulted in the above mentioned documents being filed. On the next Directions Hearing – 3 March, 2007 both parties were granted permission to issue Witness Summonses to the following: On behalf of the Wife – (1) the Paymaster (T&TEC) [the Husband’s employers], (2) the Manager of TATECO Credit Union, (3) the Manager of the Unit Trust Co-operation, and (4) the Manager of Eastern Credit Union [all of which the Husband held accounts at one time or another]. On behalf of the Husband, Mrs. Byrne requested the issue of Witness Summonses for the Paymaster/Accountant of the Ministry of Health [the Wife’s employers].

Directions for trial of the proceedings were also given on 3, March, 2007, for which two days were set aside.

The Evidence

It was agreed that cross-examination would begin with the witnesses, before embarking on the parties so as to relieve these very busy individuals early in the trial.

Witnesses called on behalf of the Wife

The first witness to be called on behalf of the Wife was Mr. Damian Duke, a Customer Service Representative of the Unit Trust Co-operation (UTC). His evidence, like the other witnesses called by the Wife (save the Husband’s employers), was short and simple. The Husband opened an account with the UTC in February 1988 and closed it in December of the same year. The present balance was zero.

The second witness, a Ms. Mindy Giles, Accountant with TATECO, said the Husband ceased being a member of the credit union on 23 June, 2006, at which time his shares totaled $3,187.61. Ms. Giles was unable to tell us when he opened this account or the amount of his largest credit, because according to her, the Husband having already resigned she only prepared his ending balance for the court, which stood at $33.90. She said that since his resignation to go on pre-retirement leave the only additional sum accruing to the account was $100.00, which the Husband withdrew.

Next came Mr. Neil Rambally Accounts Clerk at T&TEC. As would be expected his evidence was quite lengthy and sometimes technical, and rather than go into the details here, I prefer to make mention only of the salient points. He brought with him payroll statements for the period January 2006 to April 2007. According to Mr. Rambally the Husband worked as a Control Operator with T&TEC. Apart from his basic salary of $10,542.00 his position entitled him to: (i) overtime pay, (ii) a shift allowance, (iii) what is referred to as a “leave-in-lieu” allowance and (iv) a subsistence, all of which affect the amount of money he receives at the end of the month, but generally averaging around $16,600.00 for 2006. From that various deductions are made including, but not limited to, pension fund contributions, credit union deductions, vacation travel plan deductions and deductions for a Medical Plan.

Finally, Ms Charmaine Shoi, who described herself as a Senior Clerk attached to the Pensions Department of T&TEC told the court that upon retirement in October 2007, the Husband will receive a gratuity lump sum of $347,886.00 and a monthly pension of $5,721.00. In answer to questions concerning the Husband’s continued entitlement to the Medical Plan after retirement, Ms. Shoi was only able to say that it would change upon retirement but was unable to say how.

Witness called on behalf of the Husband

The only witness for the Husband was Ms. Kumarie Hanslal-Ali, the Accountant attached to the Ministry of Health, who provided information on the Wife’s earnings but could give very little assistance with respect to her retirement benefits. She was however able to tell us that the Wife recently received a salary increase in May 2007 bringing her salary up to $5,859.00. She also indicated that the trend was that every three years or so there are union negotiations for salary increases, which usually results in an increase. Like the Husband, Mrs. Kalloo is also a member of a medical plan – the Group Health Plan for all public officers. Certain other deductions from the Wife’s salary were identified: (1) $199.00 payable to Guardian Life and (2) $1,925.00 to Rhand Credit Union. Mrs. Hanslal-Ali pointed out that the Wife’s substantive post is Clerk III, but that she has been acting as a Clerk IV for some time. She stated further, that because the acting position has not yet been approved Mrs. Kalloo has not been receiving an increased remuneration, but when approval is received she would be entitled to the increased salary for the period of time of her acting position. Unfortunately, Mrs. Hanlsl-Ali was unable to say for how long the Wife has been acting in this position, nor could she tell us when and/or if the acting position would ever be approved. All she could say was that her records (from 2004 to 2007) do not reflect payment for the acting position.

Preliminary Evidence

Before Mrs. Kalloo took the stand, the parties agreed the valuation of the matrimonial home at $1.2M. It was accepted that the property was unencumbered, the mortgage having been paid off. Mrs. Byrne for the Husband reiterated their position that the property be shared equally. Mrs. Clarence-Quamina agreed that it was a long marriage and that the property should be shared but considered the Wife’s contribution “far in excess” of the Husband’s which entitled her to a greater share.

Evidence of the Wife

In her Affidavits the Wife generally painted a one-sided picture of the family’s achievements over the years. According to her, she worked from the inception of the marriage, and even though she was by far the lesser income earner, it was largely through her efforts that the family was able to lead a rather comfortable lifestyle. She said that for the first nine years of marriage the family occupied a downstairs apartment of the Husband’s parents’ home, rent-free. At the time she earned meager salaries, first as a teacher at a secretarial college, before taking up an appointment in the Public Service.

The Husband was with T&TEC but the disparity in their salaries was not that great: he earning $329.00 per month and she – $249.00. She said however that “the ensuing years would make the economic gap between their salaries so great that the Respondent’s salary more than tripled mine.”

In the May Affidavit the Wife said that the Husband “…by silent agreement…” managed their joint account but later on that “…she allowed him to manage the banking…”. Under crossexamination the Wife at first explained that what she meant by that was that because the Husband worked in such close proximity to the bank “…it was easier for him to take out the money…”. When question by Mrs. Byrne therefore which statement reflected the true position, the Wife admitted that she it was their joint decision that the Husband would do the banking transactions as opposed to “silent agreement” over which she had not control. I have spent a little time on this aspect of the evidence in particular, because I find that it is reflective of a trend that I have found throughout the Wife’s testimony, which is the playing-up of her role in the marriage, while at the same time a under- playing of Husband’s, to the extent that his role was only marginal. This I have found to be a distorted impression of the facts.

Other examples of this abound. For instance the Wife said that in 1976 she opened her own account into which her salary was deposited, a move which made the Husband change his position “drastically” so that he “now purchased grocery items alone for the family and nothing else”. She went on further to say that “Anything I wanted for the children, for me and the home generally, I had to purchase with my own money including [sic] the children’s school and educational needs, our clothes, spending money, everything. … I [sic] would ask the Respondent for assistance he would refuse to give me saying that I was a working woman. This attitude was to characterize our [sic] marriage.” In her March Affidavit she said that it was “a blatant untruth” that “the Respondent… gave me any fees for the children.” relying on the fact that the

figures he quoted in his Affidavit as representing school fees for the children were inaccurate.

The Wife goes to great lengths to give the impression that the Husband did not share the Wife’s dream for a sound education for the children or at least that he did not care one way or the other how their educational needs were met. She also minimizes the

Husband’s contribution to the acquisition of Braemer Road and its household contents. She stated that “throughout the marriage she had to shoulder the brunt of the financial and other burdens of the family and home” and that when the children were admitted to Holy Name

Preparatory she “paid all their school fees, purchased all their uniforms and other educational gear and school supplies” and this continued throughout the children’s school careers. All in all she claims that she alone was responsible for all that the family had acquired over the years, with very little assistance from the Husband.

Evidence of the Husband

Cross-examination of the Husband revealed a different picture. The Husband recounted that he did contribute very significantly to the household, the children and the family as a whole. Indeed, what I have found is that the Husband is not as meticulous with figures as the Wife, so that his recollection of amounts for various payments over the years is vague, but I accept his testimony that contributed significantly throughout the marriage very compelling.

I believe him when he says that he was in the habit of leaving money on the dining room table for the Wife whenever she requested it; that he did not know what the school fees for Holy Name Preparatory were but he would give her money on demand and she would pay; that she could not shoulder the brunt of the financial and other burdens of the family on her salary alone; that he “always gave her [sic] the children’s school fees at the beginning of each term”; that he took substantial loans to finance both Dale’s and Danel’s education; that he accompanied the Wife to the grocery twice per month to purchase groceries; that up until the children each attained the age of 21, he opted to include them and the Wife on his T&TEC Medical Plan; and that he was the only financial contributor to Braemer Road. In his affidavit he said his working hours as a shift worker did not allow him the time to transact business so the Wife would be responsible for paying bills and so forth. He made it quite clear under cross-examination that she would be the one to do the actual payment but the money came from him.

Counsel for the Wife was of the opinion that the Husband was deliberately being evasive about his financial status and pointed out several inaccuracies in his Form 9. I think that the Husband was careless with the information he gave, and may have felt bothered or overwhelmed by the questions on the form, but I do not think that he was deliberately being deceptive. If I am wrong in drawing this conclusion, I am at least comforted by the fact that many of the inconsistencies were cleared up under cross-examination.

About the matrimonial home

In justifying her claim for the right to remain in Braemer Road, the Wife said that it was always the understanding between the parties that the property would go to the children. This fact she intimated, together with (1) the Husband’s note (KK2) that she “…get him [sic] out of the marriage and take his [sic] name off the Deed” and (2) his act of giving her $10,000.00, indicated to her that he was relinquishing his interest in the property in favour of the children. Mr. Kalloo on the other hand accepted that KK2 did not state that he should be paid for his share in the property, but tried to explain under crossexamination that neither did he mean for it to go to the children, since according to him “The children are adults and they are qualified beyond our dreams.” Even if at one time, earlier on in the marriage the parties may have discussed leaving Braemer Road to the children, I take this statement to mean that his intention after the breakdown of the marriage, was not to leave the property for the children because they are able to make their own way and provide for themselves. The $10,000.00 was therefore to be used by the Wife to start divorce proceedings which would also entail settling the issue of the property between them.

External Contributions

I would like to comment very briefly on the very generous contributions to the children by Ms. Pamela Greaves and Dr. Bedaysie. The contributions made by these two individuals are not in contest and I am certain that the parties must both feel very fortunate that they could turn to them for help. From the evidence it is more likely the Wife who was more influential in seeking their assistance, but I imagine that at one time they were also quite close to the Husband. He remembers for instance that Ms. Greaves visited Trinidad often and would stay with them when she was here. The Wife recounts the conversations the Husband shared with Dr. Bedaysie. Therefore in considering these contributions I would not treat them as contributions to which the Wife should attribute credit.

I would look upon these donations as I believe they are intended, gifts by faithful and loyal friends of the family for the benefit of the children and therefore not a matrimonial contribution. In delivering his judgment in the case of Whittome v Whittome (No. 1) [1994] S.L.T. 114 Lord Osbourne examined the nature of a gift, in determining whether or not to include a number of transactions as matrimonial property, particularly where, in some instances the transaction involved a donation for the benefit of a third party. At page 122 of the Judgment Lord Osbourne in trying to identify the nature of a gift said: “The definition of the word (gift) offered by the Shorter Oxford English Dictionary is ‘a transfer of property in a thing, voluntary and without any valuable consideration>’ This definition in my opinion, accords with what I understand to be the necessary ingredients for a donation in our law. These I understand to be animus donandi and delivery of the thing which is gifted. In my opinion, it is clear that a gift may be effected through the medium of a trust. In such a situation, the asset concerned is delivered by the donor[in our case Ms. Greaves and Dr. Bedasie] to a trustee[the Wife] for the benefit of a third party [Dale Kalloo and Danel Kalloo] who is the beneficiary, or recipient of the gift … I am unable to regard such a transaction as anything other than a gift … a gift by a third party to the pursuer.”

I conclude therefore that these gifts which I describe as external contributions are gifts only to Mrs. Kalloo and do not fall to be treated as matrimonial property and accordingly the Wife cannot attribute this either directly or indirectly as her contribution.

Submissions on behalf of the Respondent

Mrs. Byrne for the Husband stressed that apart from the factors laid down in section 27 (1) (a) to (f) of the Matrimonial Proceedings and Property Act (the Act) the court also had to take into account of all the circumstances of the case, which she summed us as follows:

That the Husband was responsible for paying the mortgage on the matrimonial home in its entirety.
That the initial deposit for the purchase of the said property came from the Husband.
That based on the evidence the Husband was, by far, the greater income earner throughout the marriage, and it is unlikely that the family achieved what it did without substantial and regular contribution by the Husband.
That he contributed significantly towards the children’s education up to and including their tertiary education.
The fact that the Husband is now on pre-retirement leave and his health being what it is, consideration should be taken on his future health needs.

Counsel accepted that the children benefited from the generous gestures of Pamela Greaves and Dr. Bedasie, but concluded that the property which was in their joint names at 10 Braemer Road was the sole asset to be considered, and that the court should invoke section 54 of the Act and direct that the property be sold. She said that in spite of the fact that the Husband would be in receipt of a gratuity and pension greater than the Wife’s, bearing in mind that he had paid the entire mortgage and his contributions, the property should be sold and the proceeds divided equally between them.

Submissions on behalf of the Petitioner

Mrs. Quamina took the more traditional approach. After summarizing the facts of the case as she saw them, detailing the investments of the Wife as mentioned in her Form 8, the Husband’s expected pension and gratuity (all of which she thought fell to be considered as part of the matrimonial assets), Counsel for the Wife pointed out that the persons of the respective ages of the parties, after the breakdown of a marriage, should thereafter be put in a position that would allow each to have a roof over his or her head. Mrs. Quamina also compared the demeanor of the two parties throughout the trial suggesting that the Husband deliberately attempted to mislead the court by not being forthcoming with information about his financial status. On the other hand the Wife provided detailed and up-to-date information as far as she could obtain. I have already given my comparative analysis of the two parties and drawn my conclusions^[2] and would not repeat them here.

She went on to reiterate the Wife’s contributions during the marriage describing her as “prudent” and “devoted”; a woman who almost single-handedly maintained the home, educated the children and took care of the entire family including the Husband.

Next Counsel enumerated the assets to include the matrimonial home, the present salaries of the respective parties, and the parties’ expected pensions and gratuities. She maintained the Wife’s claim for a transfer of the Husband’s interest in the matrimonial home to her and that his interest should be calculated at one third the value of the property. She then provided a mathematical summation of the main assets and awards that should be made therefrom, on asis in favour of the Wife 1/3 : 2/3 b and that taking the Wife’s entitlement to Husband’s gratuity into account then she should end up with an approximate value representing two thirds the value of the matrimonial home, and that she be given first option to buy.

The Law

Determining the Matrimonial Assets

Attorney for the Husband stated that the only asset to be considered in this case is the matrimonial home, whereas Attorney for the Wife, made mention of the gratuities as well. I would also like to add that other items including the pensions and the Wife’s investments are also before me for consideration and I have attempted to explain what items I chose for consideration those that I excluded and why.

Apart from the obvious inclusion of the matrimonial home, I considered the following for determination for division:

the Husbands gratuity of $347,886.00
the Wife’s gratuity calculated up to the time of trial of $107,000.00.

The reason for including the two gratuity payments was simply that this was a relatively long marriage (32 years) and had these parties remained together a little longer they would have enjoyed the benefit of each other’s gratuities in their retirement years.

In the case of Happe v Happe [1990] 1 W.L.R. 1282 the parties divorced after an eight year marriage, which ended in a decree nisi being granted to the Husband who at the time was a soldier and orders made for periodical payments for the wife and children of the family. Two years later the husband left the army and was given a gratuity of £14,660.00. At about the same time the husband, who was on the verge of re-marrying his pregnant girlfriend, applied for a downward variation of the maintenance order. The wife too simultaneously applied for a lump sum. The Deputy Registrar’s order awarding the Wife half the gratuity was upheld by the judge. On appeal by the husband Purchas L.J. held that the judge had been right to treat the gratuity as a family asset to be distributed equally between the parties. The husband in Happe took the view that section 203(2) of the Army Act 1955 making gratuities, pensions, grants and so forth non-assignable meant that the gratuity could not be treated as a matrimonial asset. Lord Purchas disagreed saying at page 1290 “… for the purposes of the powers of the court under section 23 of the Matrimonial Causes Act 1973^[3] in relation to the distribution of the family assets by way of the family assets by way of making a lump sum provision, subject to the provisions of section 25² these are in no way affected by the provisions of section 203 of the Army Act or the equivalent sections in the other Royal Forces Acts.”

I interpret this to mean that the discretion given by section 23 has far reaching effects and cannot be easily outsted or usurped; and although the Happe Case dealt with monies that were already in hand, I have no doubt that the imminent future earnings of the gratuities must be taken in to account. This is further supported by the guideline provided by section 27 (1) (h) of the Act:

“(h)… in the case of proceedings for divorce … the value to either of the parties to the marriage of any benefit (for example a pension) which, by reason of the dissolution …of the marriage, that party woll lose the chance of acquiring..”

For reasons outlined below I did not include:

the Wife’s present income
the Wife’s expected pension
the Husband’s expected pension
the Wife’s Unit Trust Co-operation shares in the amount of $41,785.77
the Wife’s shares held at Rhand Credit Union in the amount of $34,862.81
the Wife’s Roytrin Mutual Fund in the amount of $44,619.69
the Wife’s US Chequing account in the amount of $350.00

Because of the uncertainty of the Wife’s present income, I thought it best to leave it undisturbed. The evidence is that she is and has been in an acting position for some four years now and therefore entitled to an increase in salary. However, because the acting position has not been approved she has not been enjoying the benefit of an increase. Nor is it clear if ever the acting position would be approved. We are also told that every three to four years the union negotiates salary increases for its members, which historically have largely led to an average 15% periodic increase. Again this is speculative. I do not think the uncertainty is worth including it for consideration, nor am I of the view that anything of significance will result by leaving it out.

With regard to the parties’ respective pensions, it is accepted that even if the Wife is to receive increases in salary before she retires in 2015, which would positively affect her pension, the evidence is that it will still be less than what the Husband will receive. However, if the pensions were pooled and divided this will greatly enhance what the wife will get, but at the same time decrease the Husband’s monthly receipts. Ordinarily I would have no hesitation ascribing to such a move, but the Husband’s medical position, although not substantiated by medical reports, I am constrained by section 27 (1) (e) of the Act to take into account. I have heard sufficient to surmise that there is a great likelihood of the Husband needing medical care in the future and he should have funds readily available to him with which to defray these costs. Ms Shoi the T&TEC Clerk was unable to tell us what the Husband will be entitled to under his Medical Plan when he is fully retired. That being said, I thought it fitting that I should leave the Wife’s pension alone as well. It is accepted that her pension will be less than the Husband’s and it would be grossly unfair to consider it.

Furthermore, Martin-Dye v Martin-Dye [2006] 1 W.L.R. 3448 tells us that “a pension in payment was a non-transferable income stream which had no capacity for capital appreciation and did not survive the death scheme member and therefore it should be characterized as ‘other financial resource’ for the purposes of section 25(2)(a) of the 1973 Act^[4] rather than a ‘property’ or ‘ income’.

I adopted Lord Justice Thorpe’s treatment of pensions in Martin Dye when he said at page 3461 of the Judgment:

“Our focus is upon pensions in payment and cash equivalent benefits. They are to be characterized as ‘other financial resources’ within the section 25(2)(a)classification. For they do not sit comfortably in the category of ‘income’ because, although purely an income stream, the income does not derive from future endeavour but from past employment or contribution which will generally have been effected during the years of marriage. This case provides a useful example of this analysis. The ‘property’ consists of the houses and the investments. The ‘income’ is the receipts anticipated from the parties continuing endeavours, …. The ‘other financial resources’ are their respective pensions in payment. … the court has two alternative ways of treating the other financial resources: either the pensions could be left undisturbed, compensating the wife for the disparity. … Alternatively the judge could have made a pension sharing order, adjusting the apportionment of the capital property to reflect the effect of this.”

For reasons intimated above I prefer the former alternative.

Finally, we have the Wife’s investments which amount to approximately $123,506.00. I am also minded to leave this entirely to the Wife, primarily because she has stated that she is indebted to Rhand Credit Union in the amount of some $86,000.00, which would leave her with just over $37,000.00, which in itself I do not think significant enough to be included.

Section 27 factors

Legislative judicial guidelines for the determination and making of orders for financial provision and property settlement are well established in the form of section 27 of the Act and in the interest of time I will not repeat them here. I have already referred to some of these in coming to certain decisions above. Those I will mention in a more general sense from this point onwards, the others I will examine more closely, where appropriate.

The recent evolution of the law in this area has had such a profound effect on the interpretation and application of section 27 that I think it is appropriate for me to dwell briefly upon the change in thinking from the traditional one-third/two-thirds starting point principle to that of equality, particularly when looking at contributions of the parties to the welfare of the family (section 25 (1) (f) of the Act).

Pre- White Cases

Before White v White^[5] the general application of the One-Third Rule made assessing the quantum of the matrimonial assets quite a chore, but until then it was the most efficient method of dividing the assets, where the contributions were very uneven, or where there were very limited assets to be considered. After Wachtel^[6] a spate of cases followed, which sometimes tended to create some confusion and instability in the application of the one-third rule. Over the years it was found that the One-Third principle was not particularly helpful in cases involving very large or very small sums. Then the introduction of the Duxbury^[7] method seemed to confuse the issue some more. The value of the housewife seemed not to be given as much weight as that responsibility deserved. All in all the “one–third guideline’ has had an uneven career but still may have value as a starting point in some cases.

Post White Case

The advantage of White v White⁴ as I see it, is that it takes a lot of the guess work out of the calculations, not only in the so-called “big money cases” but also for marriages, like the present one, where the parties have worked together over a long period, accumulated various assets and are now to go their separate ways. It provides an even balance for all wives, those who, having either contributed very little or no financial assistance, as well as those who, like Mrs. Kallo gave all she could as far as money was concerned, albeit her monetary earnings were far less than the husbands, could be fairly treated and ample recognition given to her domestic efforts throughout the marriage, equating her triumphs as a successful wife, mother and homemaker, with the business success and financial stability of the husband.

I would now take some time now to refer to some general observations in White’s Case, which I think important to mention here, not only because they form the basis of my decision in this case; but because it set some new guidelines for judges and practitioners in determining division of assets. I have always been impressed by Lord Nicholas Birkenhead’s comments at page 605 of the judgment where he said:

“In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife or forced upon them by circumstances, fairness requires that this should nor prejudice or advantage either party when considering (f) relating to the parties’ contribution.”

Lord Nicholas linked this to section 25 (f)^[8] [contributions]:

“This is implicit in the very language of paragraph (f): ‘the contributions which each … has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family.’ If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer.”

This aptly sums up the present situation. I have already said that it is my view that both parties have contributed to the welfare of the family. The Wife although the earning less income, exhibited great strength as mother and wife, providing her time, effort and encouragement to the children, taking on the burdens of loans and saving schemes to finance some of the family’s needs, taking the initiative of investing in insurance policies for the children’s future educational pursuits. On the other hand the Husband, contributed money as demanded by the Wife. It seems that he did not involve himself with the details of the spending, except to accompany the Wife to the grocery, but he gave whenever she asked. Because of his proximity to the bank he withdrew funds and gave it to the Wife who would in turn spend as necessary. This was as far as his involvement in money matters went, but he contributed to the household expenses, the children’s private school fees, books, uniforms and so forth. He was also responsible for providing the family with a comfortable home and when the time came he gave considerable sums towards the boys’ tertiary education.

With that background it should be clear to see why Lord Nicholas’ comment are relevant here, and I conclude that equal division of the assets would lead to a fair result.

Baroness Hale of Richmond in Miller v Miller [2006] 2 W.L.R. 1283 mentioned at page 1316 the rationale of “…sharing of the fruits of the matrimonial partnership.” She did recognize at page 1317 however that “…an equal partnership does not necessarily dictate an equal sharing of the assets. In particular, it may have to give way to the needs of one party or the children. Too strict an adherence to equal sharing and the clean break can lead to a rapid decrease in the primary carer’s standard of living and a rapid increase in the breadwinner’s.”

Baroness Hale likened “contributions” to “conduct”, saying at page 1318:

“ In my view, the question of contributions should be approached in much the same way as conduct.

Following White v White … the search was in for some reason to stop short of equal sharing, especially in

‘big money’ cases where the case had largely been generated by the breadwinner’s efforts and enterprise.

There were references to exceptional or ‘stellar’ contributions:… A domestic goddess self-evidently makes ‘stellar’ contribution, but that was not what these debates were about. … It had already been made clear in White v White … that domestic and financial contributions should be treated equally. Section 25 (2) (f) of the 1973 Act does not refer to the to the contributions which each has made to the parties’ accumulated wealth but to the contributions they have made (and will continue to make) to the welfare of the family. Each should be seen as doing their best in their own sphere. Only if there is such a disparity in their respective contributions to the welfare of the family that it would be inequitable to disregard it should this be taken into account in determining theirs shares.”

Counsel for the Wife suggested that the Wife’s contributions were so much greater than the Husband’s that it cannot be disregarded and therefore an equal distribution of the assets would be unfair to her, but is the Wife’s contribution to be treated with such distinction that it warrants the court deviating from equal sharing? Sir Mark Potter in Charman v Charman [2007] EWCA Civ 503 dedicated several pages of his judgment to this very question at the end of which it was concluded that special contribution must be exceptional if it the court has to consider it to deviate from the principle of equality.

“The statutory requirement in every case to consider the contributions which each party has made to the welfare of the family, as well as those which each is likely to make to it would be inconsistent with a blanket rule that their past contributions to its welfare must be afforded equal weight. Nevertheless the difficulty attendant upon a comparison of their different contributions and the danger of its infection by discrimination against the home-maker led the House in Miller heavily to circumscribe the situations in which it would be appropriate to find that one party had made a special contribution, in the sense as a contribution unmatched by the other, which, for the purpose of the sharing principle, should lead to departure from equality. In this regard the House was unanimous. First it approved … the decision of this House in Lambert, in which Thorpe L.J. had ventured ..’a cautious acknowledgment that special contribution remains a legitimate possibility but only in exceptional circumstances.”

In the case before me, is there any evidence that puts the Wife’s contributions in the category of “special” that it is so exceptional that I cannot disregard it? I think not. Apart from all her salary, insurance investments (for which the premiums never crossed

$20.00), proceeds from “sou-sou” schemes, her time and dedication to the family the only other “contribution” from her were the vast sums for Dale and Danel’s tertiary education, which I have already determined are to be excluded as a matrimonial contribution. Together these contributions, to my mind do not qualify to the exceptional standards I think Lord Nicholas had in mind.

Two other cases that promote the concept of “equality equals fairness” that I would like to make mention of are Cowan v Cowan [2002] Fam. 97 and H v H [2007] EWHC 459 (Fam). In the first case Thorpe LJ. at page 118 summarized what he thought were the consequences of the House of Lords’ review of ancillary cases after White v White. I mention the ones appropriate to this case here:

“ (i) Approved is the frequent theme of decisions in this court that the trial judge must apply such criteria as are to be found in section 25. (ii) Approved also is the almost inevitable judicial conclusion that the unexpressed objective of the exercise is to arrive at a fair solution. (iii) Disapproved is any discriminatory appraisal of the traditional role of the woman as homemaker and of the man as breadwinner and arbiter of the destination of family assets amongst the next generation. A calculation of what would be the result of equal division is a necessary cross-check against such discrimination”.

Charles J in the second case H v H concluded that in his view “… the concept of the matrimonial property to which the yardstick of equality applies readily and with force is based on the concept of an equal and voluntary partnership providing mutual emotional, economic and general support and matching contributions to it of different kinds..” He offered a simple starting guidline in applying the equitable rule in H v H, which I think could be applied to the majority of cases: “…start with the common ground, namely that the assets of the parties … were matrimonial property to which the yardstick of equality applies readily and with such force that … they should be equally divided…” . Thereafter, consideration of all the relevant arguments will dictate whether there should be a deviation.

Analysis and Conclusion

Firstly with respect to assets – Apart from the most obvious, which is the former matrimonial home at Braemer Road, for reasons I have mentioned earlier in this judgment, I have also included for consideration and division the parties’ respective gratuities that they are guaranteed to receive, albeit one sooner than the other. I did not include their pensions, again for reasons outlined above, but did give consideration to their disparity in the final amounts to be received by the parties.

Secondly: In arriving at the division I applied the principles laid down in White v White [2001] 1 AC 596 as to contributions and the recognition of the marriage as a partnership and with that, the concept of equality to arrive at a conclusion that I consider fair. Further, at arriving at such fairness that it should not prejudice or advantage either party when considering s. 27 (1) (f) of the Act relating to the parties’ contributions.

Thirdly: In considering whether I should deviate from the principle of equality because as was submitted on behalf of the wife that she made a greater contribution than the husband, guidance was sought from the post White v White cases in this regard, in particular Charman v Charman [2007] WL 148494 and Miller v Miller which suggest that only where special and exceptional contributions are made or where the marriage was very short one may consider diverting from equality.

Granted these cases are what are now referred to as “big money cases” but they can be

applied to even quite ordinary cases since according to Lord Nicholls of Birkenhead in White v White the concept derives from what is considered fair in light of what currently obtains in section 27 of the Act.

As explained above^[9], in the present case I have seen nothing so outstanding by either party that persuades me to deviate from equality. That does not mean of course that I do not recognize the valiant efforts of both parties to provide for the family.

Fourthly: I have also taken into account the health of the Respondent (section 27 (1) (e). The Husband obviously has serious heart problems. It is unfortunate that there was insufficient evidence to give a sense of what he may face in the future; but his medical condition cannot be overlooked. Also pressing on my mind is the fact that the wife too as she approaches old age, will have need for additional expense which often accompanies growing older.

Fifthly: I have also taken into consideration the Wife’s desire to remain in the house. Thanks to the Husband the property is unencumbered. If the property were to be sold the parties would enjoy 100% equity from the proceeds.

Fifthly: The marriage as I find lasted 32 years and the parties are aged 59 and 52 for the Husband and Wife respectively. The marriage is of long enough duration to conclude that the each of them deserves and is entitled to be treated equally (section 27

(1) (d).

The case of Lauder v Lauder [2007] EWHC 1227 (Fam) helps to summarise the facts before me and put it in perspective with the principles of equality when applying the section 25 factors. This case was originally decided on pre-White v White principles, when orders for a decree nisi and maintenance periodical payments to the wife were made by consent in 1988. When the wife brought an application in 2006 for a variation of the maintenance order the principle of equality was applied which had a remarkably different outcome on the issues the second time around.

The factual matrix of the case was that the parties were married for 24 years and had three children. At the time of the divorce their three children ranged in age from 14 to 20. The parties had accumulated substantial assets during the marriage. By the time of the Wife’s application for variation, the children were all grown and the husband continued with his business ventures and amassed some considerable fortune. The wife continued with her contribution to the welfare of the family, (the children continued to live with her until they achieved their own independence) going back out to work and earning sufficient to cover her needs until she retired. At the time of the variation the wife had undergone hip replacement surgery and was 70 years of age. The husband was nearing

Applying the new approach under the headings of section 27 Madam Justice Baron in justifying a lump sum payment of £725,000 explained:

“Subsection (b ): the financial needs, obligation and responsibilities for the foreseeable future. I have no doubt that this husband has sufficient to cover all of his needs in the long and short term. The wife has a proper home. … However she also needs sufficient capital to enable her to live the rest of her life without having to worry about finances. … Subsection (f): the contributions during the marriage the husband by his sustained commercial endeavours and his ability to accumulate wealth. Of course I take into account fully the fact that a great deal of his wealth had been accumulated since these parties have separated. That is a factor which I bear in the forefront of my mind when considering the fair outcome of this case. Whilst I have obviously outlined the wife’s continuing making a contribution to the welfare of the family, I have no doubt that through his financial acumen the husband has also make a continuing contribution to the welfare of his children.”

I have found that this was quite useful in deciding this case, for, in applying the equality test to these facts Lauder v Lauder provides support in justifying some of the decisions I have made in this case when taking all the circumstances into account, while at the same time adhering to the principles laid down in White v White to achieve a fair outcome.

Conclusion:

With that in mind I have determined that each party is entitled to a half share in the matrimonial home which is valued by consent at $1.2M = $600,000.00 representing each party’s share.

The aggregate sum of the gratuities is: $347,886.00 [H] + $107,000.00 [W] = $454,886.00.

Again using the principle of equality each party is entitled to $227,443.00. To this I have to make an adjustment to the Respondent’s half to make allowance for the wife’s final gratuity figure which it is accepted will be higher than the figure given at trial, since the $107,000.00 represents her gratuity calculated as of the date of trial, and not at date of actual retirement, which is about eight years away. Regrettably, the final amount of the Wife’s gratuity was not available at the time of the trial, so I am left with no alternative than to add an amount which I hope meets with fairness – $10,000.00 – increasing each party’s share in joint gratuities to $232,443.00.

The Wife wants to stay in the home. It would cost her $600,000.00 to buy the Husband’s share. At the same time she is entitled to $232,443.00, the total sum of which will not be realized until she retires eight years from now. She is already in the house. The Husband must now find alternative accommodation, and with his medical condition, is it fair for him to wait that long (8 years) to realize his interest in the property and his overall contribution to the marriage? I think not. On the other hand where is the Wife to source this money? From her own admission she has approximately $123,000.00 invested with UTC RHAND Credit Union and Roytrin Mutual Fund out of which she has to pay a debt to RHAND in the amount of $87,000.00 leaving her with $35,998.00, which does not count for much, and given the disparity of the pensions that the parties will receive it would best to leave these sums with the Wife to meet other expenses as mentioned above in the future. She has shown that she can be quite innovative. I am certain that she can use her funds wisely to enable her to have sufficient additional capital to deal with unforeseen circumstances.

In a few short months the Respondent is to come into his gratuity of $347,886.00. The Wife’s half share of this ($173,943.00) can be used as a set-off to purchasing the Husband’s share in the matrimonial home leaving a remaining balance of $426,057.00 to be paid by the Wife, plus his half share in her gratuity in the amount of $53,500.00 together with the $5,000.00 allowance I have awarded for a grand total of $484,557.00.

UPON determining that the parties are entitled to share equally the matrimonial assets consisting of:

the former matrimonial home situate at 10 Braemer Road St. Anns;
the Respondent’s gratuity of $347,886.00
the Petitioner’s expected gratuity of $117,000.00 made up of $107,000.00 calculated up to the time of trial and an allowance of $10,000.00 up to the time of retirement (2015)

IT IS THE ORDER of this court that

The Petitioner to pay to the Respondent the sum of $484,557.00 within 120 days from the date of the order, which said sum represents, the Respondent’s share and/or interest in the former matrimonial home at 10 Braemer Road St. Anns less the Petitioner’s half share and/or interest in the Respondent’s gratuity of $347,886.00, as well as his half share and/or interest in the Petitioner’s gratuity of $107,000.00 plus $5,000.00 allowance.

Upon said payment of $484,557.00 above, the Respondent to transfer to the

Petitioner All That his share and/or interest in the said former matrimonial home;

The Petitioner to bear the cost of drawing up the necessary transfer documents inclusive of stamp duty;

In the event that the Petitioner is unable to raise the said sum within the required time or at all, then the following clauses shall take effect:

The said property to be sold on the open market with an upset price no lower than $1.2M and the proceeds of sale divided equally between the parties;

Upon receipt of the Respondent of his gratuity payment of $347,886.00 he shall retain the sum of $232,443.00, which represents his half share therein i.e. $173,943.00, together with $53,500.00 and a further $5,000.00 which respectively represent the Wife’s half share each of her gratuity of $107,000.00 plus an allowance of $10,000.00 to represent gratuity calculated up to the time of the Wife’s retirement

The remaining balance from the said gratuity in the amount of $115,443.00 is to be paid by the Respondent to the Petitioner within 14 days of the receipt thereof.

As to costs I say that each party is to bear his own cost.

Allyson Ramkerrysingh

High Court Judge

[1] pages 28 & 29 below

[2] page 11 supra

[3] Equivalent section in Matrimonial Proceedings and Property Act (TT) – s. 23 ² Supra – s. 27 (2)

[4] Matrimonial Causes Act 1973 (UK)

[5] White v White [2001] AC 596

[6] Wachtel v Wachtel [1973] 1 All ER 829

[7] Duxbury v Duxbury [1990] 2All ER 77 ⁴ supra

[8] Matrimonial Causes Act (1973) (UK) s. 25 (1) (f)

[9] pages 20 et.al